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Tuesday, October 7, 2014

I Do Declare

One of the fundamentals of homeowner associations is the
presence of a binding agreement on obligations and rights between
neighbors. Similar to the Mayflower
Compact, these promises are established in a document that goes by various names,
such as Covenants, Conditions & Restrictions (CC&R) or a Declaration of
Protective Covenants.

For those new to the homeowner association concept, we are
beginning a series of blogs to provide a framework for understanding how these
obligations operate.

At the basic level, an association is an agreement governed
by contract law. Because many of the
regulations mimic civic law, it is easy to forget that the two are not the
same. Civic law creates the foundation
that permits property ownership, along with restrictions on the use of that
property. Some of these restrictions are
imposed by civil government, such as zoning ordinances.

Other restrictions are created by the persons who buy and sell
the property. For example, an area of
farmland may be sold to a housing developer, with the stipulation that 10% of
the acreage be dedicated to parks. Depending
on how this restriction is structured, the park land may have to exist
‘forever’ or it may be removable under certain conditions.

In homeowner associations, this same concept is utilized on a
larger scale. Some of the use conditions
are easier to alter than others. In some
cases, a restriction may be considered a violation of public policy, and be
voided by the civil authority. For
example, the Right of First Refusal was a common restriction in many land
exchange transactions going back a century or more, and permitted prior owners
the option of buying back a home to prevent it from being sold to non-white
Americans.

On the opposite end of the spectrum, some civic laws may be
ruled as an impairment of contract and not enforceable against homeowner
associations. An example of this would
be a state law permitting an individual homeowner to use the courts to bypass
the community’s amendment process for changing the governing documents.

Future posts in this series will drill down into specific
sections of the Declaration and consider their implications...so stay tuned!